Episode 141: Paul Butler Interview: Crime and Injustice in a Time of Pandemic

On today’s podcast we have another in our series of conversations with Paul Butler, Georgetown Law Professor, former US Department of Justice Prosecutor and MSNBC Commentator.

In our conversation, Paul and I discuss his recent essay for Crime Story about policing in the context of Covid 19, as well as many other issues related to the criminal legal process that have arisen or intensified as the virus has spread. We also talk about the hints of public corruption that have appeared in press articles, as well as the disproportionate impact that the virus appears to be having on the African American community.

And so without further ado, here is my interview with Paul Butler.

Kary Antholis:

Welcome, Paul Butler. Thank you for the piece that you wrote about policing in the era of a pandemic. How are you weathering the sheltering in place?

Paul Butler:

So I’ve got good days and bad days. I try to count the blessings, so so far everyone is safe and healthy that I know and that’s important and I understand that everyone staying at home is going to make that true for many other people as well. It does feel like the virus is getting closer and closer within kind of circles of my life, so that’s scary. Teaching is on Zoom. I think it’s going well. I hope my students feel the same way. I have a huge class of 102 students and I’m kind of old school, the way I teach. I use the Socratic method so I can still do that on Zoom. I think structurally there may be things about teaching online that work better for law school then for colleges. Some of the folks that I know who have college classes are struggling because you can’t have the same kind of interaction up close and personal on Zoom that you can have in the classroom.

Paul Butler:

Another experience we’re having at law school, which is I think relevant to some of the stuff that we think about on Crime Story, is the students have all been sent home and they go to vastly different kinds of homes. Some of them go to places where they have their own bedroom and they have easy internet access and peace and quiet so that they can focus on the online instruction. They get their three meals a day and their folks are fine. Other students have entirely different stories. I have a student who went to L.A. where she has to share a one bedroom apartment with her mom and grandma. Mom worked in the food service industry so she doesn’t have a job. The student is driving Uber in order to make ends meet and at the same time scared about exposing her grandmother to the virus, especially given the work that the student is doing.

Paul Butler:

So I got to go to these fancy great schools when I was in college and law school and there it did seem kind of like a leveling of the playing field during the time that we lived on campus together. We ate the same food, we lived in the same kind of environment. But we see now how swiftly that that can change and that’s the experience for a lot of our students. So one thing it means is that my school has a diverse set of students, which is wonderful. We’ve got people who come from very privileged backgrounds and other people who come from under-resourced backgrounds. I should say our schools, since you’re an alumnus of whom we’re very proud, Kary, but there is this kind of sense that when you get here, it was a level playing field and one of the many things this virus has exposed is that the playing field isn’t level at all.

Kary Antholis:

Yep. And we’re seeing that as well in public education in the grade school and high school level. While private schools can engage in remote learning for their students, the public schools are loathe to do that because of the inequities of the distribution of technology and space to be able to kind of learn quietly and safely for under-resourced students. So there are a number of aspects of societal inequities that are exposed by this pandemic. Why don’t we zero in on the inequities and the other areas that this pandemic has exposed in the criminal legal process and in the penal system around the country? You wrote in your piece about how policing has changed in the era of COVID-19. Would you kind of expand upon those observations but also discuss some of the other areas in the process and in the system that have been exposed by the pandemic and some of the trouble areas that lie ahead as this thing takes its grip?

Paul Butler:

Let’s start with the good news. The police are keeping their hands off black men and black women and transgendered folks, immigrants, Latinx people, poor people. Not everyday all the time, but arrests in most jurisdictions are way down. I would imagine stops and frisk are way down. The reason, I don’t even have to say, is because the police don’t want to catch the virus. They’ve got dangerous jobs just normally, so this pandemic adds a new level of threat to their work and so they’re keeping a distance. When I researched what law enforcement officers were saying about it, I was surprised that they were so transparent about the change. So the Miami police chief said to his officers, “If you don’t have to arrest someone, then don’t. If you don’t have to put your hands on somebody, then don’t.” Duh. Why does that just pass for good policing in a pandemic?

Paul Butler:

The Chicago interim police chief said that normally he would be upset by the dramatic reduction in police stops and arrests but now he’s glad because that means the officers are doing what he’s asking them to do. I could see if maybe crime was going way up why these officers would think that there was some kind of cost to reduce negative interactions with citizens. But Kary, what we’re seeing is that most of these jurisdictions, crime is going down and so we have this phenomenon that I think a lot of people would be surprised by, but it’s actually quite predictable. When the police treat folks better, people are more willing to respect and obey the law, especially when they can see how it works for them, and so I hope that this is a moment of transformation that we can use this tragedy to think about ways to do better. One of those ways is to continue to instruct the police to keep their hands off, unless it’s absolutely necessary. Again, it shouldn’t take a national health emergency for that common sense lesson. I know you’re not used to hearing good news from me, Kary, so if you want, I can just pivot to the bad news. There’s plenty of that.

Kary Antholis:

Before we pivot to the bad news, let’s also talk about what’s going on among prosecutors and among public defenders and judges in dealing with bail issues, parole violations, holding jails. Is that bad news there or is there some good news there too?

Paul Butler:

It’s mixed. So the catastrophe, the human rights tragedy unfolding before our very eyes is that prisons and jails are breeding ground for the virus. It’s impossible to shelter in place in a U.S. correctional facility and so we’re seeing outbreaks, illness, and deaths among prison inmates, among correctional officers and if you think about those three shifts a day that people who work inside prisons serve, when they leave, if they’re exposed, they take their exposure to the communities that they go back to. And so this is a nightmare that is largely preventable. It’s preventable by letting everybody come home unless there’s a clear and present danger to public safety if they do.

Paul Butler:

I wouldn’t say that everybody gets that, but what we’re seeing is prosecutors, defenders, judges, and some elected officials understand that this is a time for decarceration, even if it’s temporary, that that’s in our public health interest. And so in some jurisdictions, New York and Los Angeles come to mind, prosecutors have actually worked with defenders to try to get some folks released, either for good on an early basis, things like good time credit, or temporarily until the public health emergency subsides and so that’s encouraging. It’s another one of those lessons, one of those opportunities, that this national tragedy creates that I hope we capitalize on even after the virus is history.

Kary Antholis:

What do you see going on, on a federal level? What is the Attorney General doing about the federal prison system? What are federal prosecutors doing? How is that being handled?

Paul Butler:

So Attorney General Barr has suggested that there are people who should leave federal prison during the pandemic because they’re at risk and also, as I mentioned, that risk of exposing others to the virus, their fellow inmates and also the people who work in the federal prison system. So again, he talks the talk, but does he walk the wall? 50% of people who are in federal prison are there for nonviolent drug crimes. Those people should come home tomorrow. There’s no excuse for keeping people in what is essentially a Petri dish for the coronavirus. It’s, in some instances, the death penalty where people who are serving sentences for nonviolent crimes. And with regard to that distinction, again, I’m making it because it presents such an easy case.

Paul Butler:

If we go back for a moment to the state prisons where 90% of inmates are housed, a lot of those women and men are there for “violent offenses” and the way our criminal legal process works, a violent offense could be anything from possession of an unlicensed weapon to the offenses that everyone would agree are violent like sexual assault and homicide. But in my work, Kary, I’ve suggested along with many others that we can’t throw those folks away and that in some ways this distinction between nonviolent and violent offenders is a false and unhelpful one. I get the concern that if people who have been convicted of violent offenses who are locked up come home, it sounds like they might do things that are bad. So in a sense, that’s an empirical question and one of the things I like about this new movement for reform and transformation is it’s evidence based and the evidence simply doesn’t support the notion that when people have committed violent offenses, have been incarcerated, that when they come home they’re going to go back to those violent offenses. In fact the evidence suggests quite the contrary.

Paul Butler:

So just like when I talk about prison abolition, I don’t mean open every door of every prison tomorrow. It needs to be done in a thoughtful way that’s attentive to public safety. But again, that process needs to start right now, fast, quick, and in a hurry again, not just for the folks who have committed nonviolent offenses, but also for the people who are at risk for violence who were serving time and now again, the question is do they deserve the death penalty? And the answer is no.

Kary Antholis:

I’ve also heard a lot of discussion about the use of risk assessment tools both at a federal level and at the state level in assessing who among those who may have been convicted for what is categorized as a violent crime, i.e. possession of an illegal firearm. Why don’t you talk a bit about the way that the practical impact of those risk assessment tools and the implicit bias that may go into creating them.

Paul Butler:

So the way it works in many jurisdictions even today is somebody gets accused of a crime and that person goes to court and the judge has to decide whether she should respect the constitutional presumption of innocence and treat that accused person like any other innocent person or whether she, the judge, should lock the person up before trial. The reason that she might lock the person up is because the judge thinks that the person is a danger if he’s on the outside or that he might not show up for trial if he is not incarcerated. The way the judge makes that decision is kind of how she’s feeling at the moment. [inaudible 00:15:32], kind of looking, “What do I think based on the look in his eyes? Do I think he’s going to come back? Do I think he’s going to hurt somebody.” I mean it’s a little more sophisticated than that. They might look at a person’s record, their employment or their living situation and then decide.

Paul Butler:

But again, thinking about evidence based approaches, judges tend to be way too expansive in terms of who they make decisions to lock up, and so one response to the arbitrary nature of these decisions by human actors is to let algorithms make the decision instead. And so we have these tools that some jurisdictions are using now that try to predict future dangerousness and likelihood of coming to court. That second thing, which is also often a big part of bail determination is how likely is this person to show up? It turns out that the vast majority of people who are charged with crimes will return to answer those charges in court even if they’re allowed to go home, go back to work while the case is pending. When folks don’t show up, it’s often because of some technical screw up. They got the date wrong, the letter didn’t come, they went to the wrong place. And there are surprisingly simple ways to impact that category of folks. One is to send them a text the day before the trial. It sounds silly, but it works.

Paul Butler:

So when we think about the larger, more difficult issue of predicting future dangerousness, like should the judge lock this person not because he might hurt somebody if he’s not locked up. The algorithms purport to be less biased than human actors, but they’re created by human actors and they have built in some of the same fault. So for example, they might look at things like employment. They might look at things like living conditions. If you live with your wife and kids, the algorithm might think you’re more likely to show up than if you live in a group home or if you have a unstable housing situation.

Paul Butler:

If you have a job, you’re, I would say obvious, but I don’t want to make any claims about obvious because we’re always learning so much when we actually explore these issues but it might seem obvious that if you have a job, you’ve got the kinds of connections to the community that will also make you want to do right while your case is pending so that you can return to that job. But African-American unemployment has never been less than twice white unemployment and you get where I’m going with this. All of the supposedly objective factors that go into the algorithms, how this non-objective bias that is built in. So these instruments are relatively new. I want to keep an open mind about how well they work and whether they make a difference, whether they’re better for racial justice. So far the data isn’t particularly encouraging.

Kary Antholis:

I want to shift over to a different area of experience that you have. The area of public corruption. There have been reports in recent weeks about potential corruption in the supply chain of federal relief and of the distribution of personal protective equipment, ventilators and other medical equipment. Have you had an opportunity to do reading in this area and do you see any alarm bells going off from a public corruption point of view?

Paul Butler:

The big alarm bell is President Trump’s consistent fear of oversight, of checks and balances on power, on his power. And so we have this necessary bill that allocates billions of dollars to help Americans recover from this nightmare and everything that I know as a former public corruption prosecutor tells me that 99% of the people who get money and the businesses that receive funds will do fine. They’ll operate with integrity. Well, that 1% or less is going to see these big dollar signs and think that they can make a buck quicker breaking the law than complying with it. We know that’s going to happen and so why wouldn’t we want a system in place and why wouldn’t we want experienced investigators in place to monitor that system? Well, I don’t know. Ask President Trump why he wouldn’t want that since almost as soon as this rescue package, this early rescue package, that allocated over $1 trillion to this-

Kary Antholis:

Yeah, $2 trillion.

Paul Butler:

$2 trillion to this pandemic and included an inspector general who would look out for the concerns that I expressed. As soon as the bill was passed, within a couple of days, the president took steps to end that oversight by that experienced person and so that doesn’t bode well. That sends exactly the wrong message, and the concern is that one, it’s kind of this consistent problem for our democracy. This is a president who does not want checks and balances and so far the Senate at least has given him a green light on avoiding checks and balances.

Paul Butler:

The broader problem to my mind is that these rescue packages are just the beginning and if our nation is to be saved and if our workers, especially our frontline workers who I think we’re all respecting a lot more now, I want to give the nurses and doctors the kind of applause that I’ve seen lots of other people giving them, they deserve them. Same thing with the EMT workers. I also, when I go to the grocery store, try to make it rear now. I want to give a huge shout out to the clerks who are supplying the shelves and sitting at the cashier’s desk. I can’t imagine what it must be like to expose yourself to harm eight or ten hours a day just doing your job. Those folks, now we understand that they need healthcare because it’s not just the obvious human rights thing to do, but it also is important for everybody else’s health.

Paul Butler:

So that’s a long winded way of saying that on the day that Bernie Sanders has left the race, a lot of his ideas, especially about the urgency of some kind of national health care plan, are clear and it’s going to cost a lot of money and unless people have confidence in the system that allocates those vast amounts of money, it’ll be harder to do. It’ll be harder to get passed. And so what I would love, of course I wouldn’t have expected this, but what would have been great is if President Trump said, “We’re going to put our best investigators to make sure that these funds go where they’re supposed to go. They’re supposed to help people who are in need. They’re not supposed to enrich the pockets of greedy folks who are willing to break the law,” because that would create confidence in this reallocation of resources that has got to be only the beginning.

Kary Antholis:

And in fact, the reports that I’m seeing indicate that the President and his administration have set up this distribution of medical equipment in a way that they’re requiring all medical equipment coming in from overseas to be delivered to private contractors who essentially have concessions of selling that medical equipment and those concessionaires are offering the equipment for the bidding of various states and hospital systems. The other thing that I’ve read about is that hospital systems and states are trying to make direct deals for some of this equipment, sometimes with domestic suppliers, sometimes with international suppliers, and those deliveries are being intercepted by federal authorities and re-allocated in directions that are as yet unclear.

Kary Antholis:

Then the other area of public corruption that has become apparent in the last few weeks is the use of inside information by our representatives to trade their own personal portfolios in one direction, in a bearish direction, when they’re spouting optimistic rhetoric on national television. And so it’s … and as you say, the vicious circle that this creates is that it denigrates people’s perception of government and for a party that is advocating less government, demonstrating that government is inherently corrupt and performs poorly actually serves an ideological purpose as well.

Paul Butler:

Indeed, it does. Ironically at a time where there’s never been more apparent the need for a government that takes care of all of its citizens, a government that serves to allocate resources in a way that’s fair and humane and our government has the potential to do that. And lots of the states, we’re seeing state governments step up and do that right now. So we see Oregon saying to New York, “We’ve got some ventilators that we’re not using. You really need them, take them. And then when we need them, we’ll get them back.” So we’re seeing government at its best and we’re also seeing, with the federal administration and especially President Trump, government at its worse. And the concern is that now that everybody knows that we need government, will they trust it? Should they trust it? And I keep coming back to this refrain of evidence base. But unfortunately the evidence does not suggest that we should trust the Trump administration and that just enhances this public health crisis.

Kary Antholis:

I want to ask you one last question and then let you go about your day. As you look ahead at the coming weeks and months, how do you see this pandemic and its impact on the criminal legal process, on our penal system, how do you see it impacting what you may focus on, study, the evidence that you’re going to be looking at in pursuing your scholarship?

Paul Butler:

It’s always difficult to see the picture when you’re inside the fray. So in terms of a national catastrophe, the only thing that remotely comes to mind in the last couple of decades that’s like this is September 11th, and now more people have passed away, more Americans have passed away, from the virus than were victims of those terrorist attacks. But during that time we wonder, “Well, how will this impact our lives?” Of course it changed a lot from the way that we fly, what happens to us when we get to the airport, to the FBI largely getting out of the drug business, which is what they have been focused on before September 11th, and turning their attention to national security, which was a positive development. Again, something beneficial coming out of that crisis.

Paul Butler:

So I’m interested in how this pandemic will alter life as we know it. There’s no question that it will, not just that it has, but that it will. And so then the question is how? And you know, as we’ve been thinking about throughout this conversation, there’s a real opportunity for transformation, for the police to understand that when they make fewer arrests, when they do fewer stops and frisk, that doesn’t negatively impact public safety. In many ways, it makes us safer. Certainly helps keep black men freer from filing assault from the cops. But it also encourages communities to really actually think the cops are there to serve and protect. And so we’ve seen with these stay at home orders, we’ve seen a potential for good. So examples of police officers saying on bullhorns to crowds, groups of more than 10 people, “For your own good, you should go home. This isn’t safe for you.”

Paul Butler:

The downside, the concern is, is what we saw over the weekend where folks hanging out in Brooklyn, cops say disperse, couple of people don’t want to, they get locked up. So police have this extraordinary power now and the 75% of the country that’s subject to stay at home orders, actually it was 75% last week, now it might be closer to 90%, the police have the power to stop, to detain anybody just for being on the street. And there have been a few places where we’re seeing them abuse this power in New Jersey, largely in communities of color. The police were doing traffic stops just to ask people where they were going. Stopping cars, pulling cars over. “What are you doing out?” And if they didn’t like the reason, the police issued a citation. In many jurisdictions they have the power to arrest. You get, in D.C., a $5,000 fine and thrown in jail for 90 days. And going back to what I said at the beginning of our conversation, it should be obvious why the police might not want to do that because not only is it dumb policing, it also exposes the cops themselves to infection.

Paul Butler:

But if we do our comparative analysis, we can see that those concerns have them restrained. The police in the Philippines, where 50,000 people who’ve been arrested for not obeying that countries lock down. Spain, 31,000 people. France has put 100,000 officers on the street just to enforce its quarantine. And so I’m interested in which way we’re going to go, whether the United States is going to learn the right lessons from this international tragedy or whether we’re going to use it as another excuse to give the police and prosecutors more and more power. It wouldn’t be the first time we’ve taken a public health emergency and turned it into a criminal issue.

Kary Antholis:

Yeah. And we haven’t even touched upon, and it’s sort of outside of the scope of Crime Story to focus on this, but I do think it’s important to mention that already we’re seeing a devastating impact of COVID-19 on the African American community particularly. And there are a number of reasons for that, but the fact that many black folks in America don’t have access to adequate health care and work in the front lines in jobs that are part of what we deem essential services so there’s a double whammy of risk and lack of access to care. I saw a statistic yesterday that African Americans make up 30% of the folks that have the virus in New Orleans and 70% of the deaths in New Orleans. So that’s another evolving inequity that is going to mark the landscape of this disease.

Paul Butler:

Yeah. So let me agree with you and disagree with you. So where I agree with you is that there does seem to be disproportionate illness and death in the African American community from this virus. And I have to say seems, because we don’t know, we don’t have enough information on a national level to come to a informed conclusion because so far the Center for Disease Control hasn’t been willing to release that information. We don’t even know if they’re collecting it. We weren’t able to understand the profound race disparities in our criminal legal process until we got the data and until we get the data, the national data, about how this emergency impacts different groups. Again, I think there’s strong evidence that it has a disparate impact on the African American community, but it’s so important that we get the data to know that.

Paul Butler:

Where I disagree with you slightly is you called this a evolving issue and I actually think it’s the same old shit. It’s about structural inequality and we don’t have any reason to think that African Americans have some kind of genetic disposition to COVID-19. It wouldn’t make sense because African Americans have such an extraordinary gene pool, it’s hard to make any kind of genetic claims about us. What we do know is what you said, that African Americans suffer profound structural inequalities and so in Chicago, if you look at the neighborhoods that have been disproportionally impacted by this pandemic, they’re poor neighborhoods. They’re predominantly African American neighborhoods and they’re also the neighborhoods that have more people who are going to prison, more kids who are getting stopped and frisked, more children who suffer from food insecurity, who were scared about school being closed because they weren’t sure where they were going to get their breakfast and lunch from. And fortunately, it sounds like most school districts have stepped up and continued to supply that food to kids. But again, this “susceptibility” of black folks to the virus, it’s entirely predictable. It’s just one more manifestation of the same old racial injustice.

Kary Antholis:

Paul Butler, we began on a positive note and we ended on a really troubling note. Let’s see what the evidence delivers and in the meantime, be safe, be well and best to you and your loved ones.

Paul Butler:

And same to you, Kary. I’m proud to be a part of Crime Story. I don’t think anyone’s doing better reporting on how this national health emergency is impacting the criminal legal process. So the Crime Story Daily is just such a wonderful … wonderful isn’t the right word to use because the story it’s telling is so tragic, but it’s a really compelling narrative about what this virus is doing to us as a people, what it’s doing to our law. And again, both the perils and the potential. So I think when people look back and think, “What was it like to be alive during the time that this crazy virus was changing everything,” one of the places that they’re going to look is, is to Crime Story because it’s telling this tragic, compelling story really well.